WVC 31 E- 8 - 831
§31E-8-831. Standards of liability for directors.
(a) A director is not liable to the corporation or its members
for any decision to take or not to take action, or any failure to
take any action, as a director, unless the party asserting
liability in a proceeding establishes that:

(1) Any provision in the articles of incorporation authorized
by subdivision (4), subsection (b), section two hundred two,
article two of this chapter or the protections afforded by section
eight hundred sixty of this article or article seven-c, chapter
fifty-five of this code, if interposed as a bar to the proceeding
by the director, does not preclude liability; and

(2) The challenged conduct consisted or was the result of:

(A) Action not in good faith; or

(B) A decision: (i) Which the director did not reasonably
believe to be in the best interests of the corporation; or (ii) as
to which the director was not informed to an extent the director
reasonably believed appropriate in the circumstances; or

(C) A lack of objectivity due to the director's familial,
financial or business relationship with, or a lack of independence
due to the director's domination or control by, another person
having a material interest in the challenged conduct: (i) Which
relationship or which domination or control could reasonably be
expected to have affected the director's judgment respecting the
challenged conduct in a manner adverse to the corporation; and (ii)
after a reasonable expectation has been established, the director does not establish that the challenged conduct was reasonably
believed by the director to be in the best interests of the
corporation; or

(D) A sustained failure of the director to devote attention to
ongoing oversight of the affairs of the corporation, or a failure
to devote timely attention, by making or causing to be made
appropriate inquiry, when particular facts and circumstances of
significant concern materialize that would alert a reasonably
attentive director to the need to make inquiry; or

(E) Receipt of a financial benefit to which the director was
not entitled or any other breach of the director's duties to deal
fairly with the corporation and its members that is actionable
under applicable law.

(b) The party seeking to hold the director liable:

(1) For money damages, has the burden of establishing that:

(A) Harm to the corporation or its members has been suffered;
and

(B) The harm suffered was proximately caused by the director's
challenged conduct; or

(2) For other money payment under a legal remedy, including
compensation for the unauthorized use of corporate assets, has
whatever persuasion burden may be called for to establish that the
payment sought is appropriate in the circumstances; or

(3) For other money payment under an equitable remedy,
including profit recovery by or disgorgement to the corporation, has whatever persuasion burden may be called for to establish that
the equitable remedy sought is appropriate in the circumstances.

(c) Nothing contained in this section may: (1) In any
instance where fairness is at issue, including consideration of the
fairness of a transaction to the corporation under section eight
hundred sixty of this article, alter the burden of proving the fact
or lack of fairness otherwise applicable; (2) alter the fact or
lack of liability of a director under another section of this
chapter, including the provisions governing the consequences of an
unlawful distribution under section eight hundred thirty-three of
this article or a transactional interest under section eight
hundred sixty of this article; or (3) affect any rights to which
the corporation or a member may be entitled under another provision
of this code or the United States code.

Note: WV Code updated with legislation passed through the 2015 Regular Session
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